New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2004-034-576, Claim No. 106401, Motion No. M-69075


Synopsis


Claimant's motion for subpoenas duces tecum of the personnel and records of correction officers is denied.

Case Information

UID:
2004-034-576
Claimant(s):
JULIO PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106401
Motion number(s):
M-69075
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
JULIO PEREZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 27, 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The Court has considered the following papers in connection with this motion:

1. Claim, "verified" July 18, 2002, filed July 22, 2002;

2. Answer, affirmed August 15, 2002, filed August 19, 2002;

3. Claimant's Notice of Motion, dated August 31, 2004, filed September 3, 2004;

4. Affirmation of James L. Gelormini in opposition to Claimant's motion, dated September 17, 2004, filed September 22, 2004, with attached exhibits.

Claimant filed this claim in July 2002, to recover for injuries allegedly sustained as the result of an assault by correction officers at Attica Correctional Facility on May 4, 2002. In the months that followed Claimant sought disclosure of various items, including the personnel files and inmate grievance histories for several correction officers. Defendant complied in part with the demand, but objected to the production of personnel files and grievance reports on the basis of privilege. No further discovery has been demanded by either party since September 2002. On August 23, 2004 the Court scheduled the matter for trial on October 8, 2004. Claimant then filed the instant motion seeking those same items requested through discovery by a subpoena duces tecum pursuant to CPLR 3120. Defendant has opposed the motion.

Civil Rights Law § 50-a (1) exempts from disclosure "[a]ll personnel records, used to evaluate performance toward continued employment or promotion . . .". It is well settled that "inmate grievances would fall within the statute. They are documents containing personal, employment-related information about a public employee, namely, complaints made by inmates about the on-the-job conduct of certain correction officers . . ." (Matter of Prisoners' Legal Services of New York v New York State Department of Correctional Services, 73 NY2d 26, 31 [1988]). Although Claimant asserts that he seeks the records to prove his case, his purpose in seeking the records is irrelevant. It is the nature and potential use of the information that is the focus of Civil Rights Law § 50-a, "irrespective of how, at whose behest or for what purpose the information is released into the public domain" (Matter of Daily Gazette Company v City of Schenectady, 93 NY2d 145, 158 [1999]). On that basis Claimant's requests for records in items number 1 through 5 of his motion are denied.

To the extent Claimant has sought medical records or injury reports of the correction officers, that request is likewise denied. Defendant, by merely defending this matter, has not affirmatively placed the physical condition of its employees in controversy (Dillenbeck v Hess, 73 NY2d 278 [1989]), and those employees have not directly or indirectly waived the physician-patient privilege.

More generally, the Court notes that this matter has been scheduled for trial, and that two years have transpired without any effort to pursue further discovery. Claimant has offered no explanation for his delay in the pursuit of disclosure, and the Court is disinclined to adjourn the scheduled trial when no reason for years of inaction has been suggested.

Based upon the above, it is

ORDERED, that Claimant's motion is denied.


September 27, 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims